Regarding the photo ID: No, it was fair enough. The court said that a photo ID is only a problem if it's so misleading that it creates a 'very substantial likelihood' of picking the wrong person. In this case, the crime happened in a well-lit bank, the witnesses got a good look at the robbers, and they saw the photos the very next day. So, even if the process wasn't perfect, it was unlikely to have caused a mistake.

Regarding the testimony: Yes, it was unconstitutional. It's not fair to make a defendant choose between two different constitutional rights. Garrett had to choose between his Fourth Amendment right to challenge an illegal search and his Fifth Amendment right to not incriminate himself. The Court found it's 'intolerable' to force such a choice. Therefore, what Garrett said in the pre-trial hearing to claim the suitcase was his could not be used against him in his trial for robbery.

Regarding the photo ID: No, this wasn't a constitutional problem. Whether an eyewitness is believable after seeing photos is something for the jury to decide, not the Supreme Court. 

Regarding the testimony: No, it was perfectly fine to use his words against him. Garrett chose to testify. He gave up his right to remain silent about owning the suitcase so he could try to get the evidence thrown out. You can't say one thing in a court hearing to get an advantage and then expect it to disappear for the trial. This ruling helps criminals play games with the justice system.

Regarding the photo ID: No, I agree with the majority.

Regarding the testimony: No, I agree with Justice Black that it was fair to use his testimony against him.

The way the police showed the photos to identify Simmons was not so unfair that it was against the law. They needed to use the photos quickly to catch the robbers, and the bank workers were sure about identifying Simmons. But it was wrong to use what Garrett said about owning the suitcase against him at the trial. He shouldn't have to give up one legal right to use another. When someone tries to keep evidence out by saying it was from an illegal search, what they say can't be used to prove they're guilty unless they're okay with it. That's because otherwise, they'd have to choose between their right to privacy and their right to not say things that could be used against them.

I agree with keeping Simmons' conviction but not with overturning Garrett's. Simmons' complaint about the photos being unfair is silly, because how the identifications happened only matters in deciding how reliable the evidence is, not if it can be used at all. The Court shouldn't overturn Garrett's conviction, because him saying he owned the suitcase at the hearing was strong evidence against him. Letting the government use that is important to convict guilty people. Garrett gave up his right to not say things against himself by testifying at the hearing, so what he said can be used.

I agree with the Court's decision on Simmons but disagree about Garrett for the reasons Justice Black gave.

The photographic identification procedure was not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."

To suppress identification testimony, there must be "*** a very substantial likelihood of irreparable misidentification."

—the Supreme Court held that "when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection."

The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.

—the Supreme Court held that a defendant's testimony at a pre-trial suppression hearing could not be admitted against him at trial.

Suggestive lineups, the Supreme Court has explained, are particularly dangerous because they can taint later proceedings: "Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom …

It is intolerable that one constitutional right should have to be surrendered in order to assert another.

As to the photographic identification of Simmons: No, the procedure did not violate due process. A conviction based on an eyewitness identification following a pretrial photo identification will be set aside only if the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Here, the use of photographs was necessary for the FBI to determine if they were on the right track with their investigation. The robbery occurred in a well-lit bank, the witnesses had up to five minutes to see the robbers, the photos were shown the next day while memories were fresh, and there is no evidence the agents suggested who to pick. Under the totality of these circumstances, there was little chance of misidentification.

As to the admission of Garrett's suppression hearing testimony: Yes, admitting the testimony violated his constitutional rights. A defendant should not be forced to surrender one constitutional right (the Fifth Amendment privilege against self-incrimination) in order to assert another (the Fourth Amendment right against unreasonable searches and seizures). To establish standing to challenge the search, Garrett had to admit ownership of the suitcase, which was highly incriminating. Forcing this choice is an intolerable constitutional dilemma. Therefore, testimony given by a defendant to establish standing for a Fourth Amendment suppression motion is not admissible against them at trial on the issue of guilt.

As to the photographic identification of Simmons: No, the procedure was not unconstitutional. The due process claim is frivolous. The circumstances of a pretrial identification go to the weight of the evidence, which is a question for the jury, not a constitutional issue for the Court to decide based on the 'totality of the circumstances.'

As to the admission of Garrett's suppression hearing testimony: No, admitting the testimony was not a constitutional violation. By choosing to testify at the suppression hearing to gain a benefit, Garrett validly waived his Fifth Amendment privilege regarding that testimony. The testimony was therefore not compelled and could be used against him. The Court's ruling encourages defendants to commit perjury by swearing they own property in one hearing and then allowing them to implicitly deny it at trial without consequence.

As to the photographic identification of Simmons: No. Concurs with the majority's reasoning and result.

As to the admission of Garrett's suppression hearing testimony: No. Dissents for substantially the same reasons articulated by Justice Black.

The identification procedure using photographs was not so impermissibly suggestive as to violate due process. The FBI's use of photographs was justified and necessary, and the identification of Simmons by the bank employees was reliable. The refusal to produce the photographs at trial did not amount to an abuse of discretion. However, Garrett's Fourth Amendment rights were violated when his suppression hearing testimony was used against him at trial, as it compelled him to choose between his Fourth and Fifth Amendment rights, which is intolerable. Yes, convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, because each case must be considered on its own facts. Here, the identification of Simmons was reliable given the circumstances of the witnesses' observations and the identification procedures used. However, it is intolerable that one constitutional right should have to be surrendered to assert another. When a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection, because otherwise he would be compelled to choose between exercising his Fourth and Fifth Amendment rights.

I concur in affirming Simmons' conviction but dissent from reversing Garrett's conviction. Simmons' due process claim regarding the identification procedure should be denied as frivolous, because the circumstances of the identifications are only relevant to the weight of the evidence, not its admissibility. The Court should not reverse Garrett's conviction, because his testimony at the suppression hearing that he owned the suitcase was a strong piece of evidence against him. Permitting the government to use such testimony is crucial to convicting guilty criminals. Garrett waived his privilege against self-incrimination by testifying at the hearing, so his statements were not compelled and are admissible.

I concur in Parts I and II of the Court's opinion affirming Simmons' conviction but dissent from the reversal of Garrett's conviction for the reasons given by Justice Black.

Simmons v. United States

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